Shultz v. Rice
| Decision Date | 19 December 1986 |
| Docket Number | No. 84-2068,84-2068 |
| Parties | 22 Fed. R. Evid. Serv. 224 Jeanne L. SHULTZ, Plaintiff/Appellant, v. Bernard RICE, M.D., Defendant/Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leland F. Dempsey, Kansas City, Mo. (William H. Pickett, Kansas City, Mo. and Michael E. Callen, Callen, Sexton & Shelor, Kansas City, Kan. with him on brief), for plaintiff/appellant.
Frank Saunders, Jr., Wallace, Saunders, Austin, Brown and Enochs, Overland Park, Kan. (Michael P. Oliver with him on brief), for defendant/appellee.
Before McKAY, MOORE, Circuit Judges and SAM, District Judge. *
The plaintiff, Jeanne L. Shultz, appeals from a jury verdict in favor of the defendant, Dr. Bernard Rice, and from the district court's denial of her motion for new trial. Shultz seeks reversal of the denial and remand for a new trial on the ground the district court committed several errors. We hold no reversible errors were committed, and affirm.
Dr. Rice is a board certified doctor of internal medicine with a sub-specialty in endocrinology. 1 On July 15, 1980, Dr. Rice first examined Shultz, age 25, for complaints of energy loss, weight gain, skin inflammation, and burning in her urinary tract. Shultz informed Dr. Rice of her medical history which included, in addition to skin inflammation, thyroid malfunction and long-term female problems involving surgical removal of an ovary when she was 17 and tentative diagnosis of multiple cysts on her remaining ovary. 2 Dr. Rice treated Shultz with ampicillin, an antibiotic used to combat various infections of the urinary tract, and asked her to return two days later. During the second visit, Dr. Rice gave Shultz an appetite suppressant and ordered a repeat urinalysis and a kidney x-ray.
On Friday, August 8, 1980, Shultz returned to Dr. Rice after he refused to prescribe medication over the telephone and he insisted she appear for examination. Shultz told him the burning in her urinary tract had ceased but she complained of nausea, swollen breasts, further weight gain, and absence of menstrual periods for two months. Although she had missed periods in the past, the two-month interval was the longest she had experienced. Dr. Rice testified at trial he asked Shultz, who was unmarried, whether she had engaged in sexual intercourse and he noted in his records she "denied exposure." Shultz maintains Dr. Rice never inquired concerning her sexual activity that occurred during the three months before her first visit.
Dr. Rice was aware of the previous diagnosis of multiple cysts on Shultz' ovary, and he ordered a battery of laboratory tests designed to discover the existence of ovarian cysts or other causes of her amenorrhea, the abnormal cessation of menstrual discharge. Among those ordered were a urine pregnancy test and a serum pregnancy test, the results of which are generally available a few hours after examination. Dr. Rice asked Shultz to return to his office following the testing, at which time he injected her with 200 milligrams of progesterone in sesame oil. 3 Progesterone in oil is a diagnostic agent that allows examination of the entire hypothalamic pituitary-thyroid axis, and injection of it has long been recommended as the initial stage in evaluation of an amenorrheic patient.
Later in the afternoon, after the injection, the lab reported the pregnancy test results were positive, and a sonogram conducted on Shultz the following Monday confirmed she was pregnant. Immediately following receipt of the sonogram results, Dr. Rice counseled Shultz in his office concerning the various options available to a pregnant single woman, including abortion. He testified he did not mention any alleged risk of fetal damage that could result from injection of a pregnant woman with progesterone in oil because he did not wish to alarm Shultz about what he considered a non-threatening situation.
Shultz claims that upon discovering she was pregnant, she became anxious about the possible effects upon her fetus of the appetite suppressant and progesterone in oil. She testified she asked the radiologist who administered the sonogram about the potential consequences of her progesterone in oil treatment, and he told her the injection was very dangerous to the fetus and should never have been given to her. Shultz stated she posed the same question to Planned Parenthood in Kansas City and the Pregnancy Hotline in Florida. The two groups allegedly agreed progesterone in oil should not be administered to pregnant women, and the hotline informed her the treatment could result in birth defects such as limblessness, cleft palates, and masculinization of female fetuses. Shultz further testified that, on advice of counsel, she used the University of Missouri-Kansas City medline searches to obtain information concerning the effect of progesterone on fetuses. She also consulted with Dr. Joseph Manley, a physician who purportedly told her "it would be like shooting craps to keep the baby, because of the birth defects." 4 R. IX, 131.
On August 20, 1980, Shultz was hospitalized for abdominal pains and bleeding, problems unrelated to her progesterone in oil injection. Five days later, she was notified her fetus was no longer living.
Shultz brought this action seeking damages for the mental anguish caused her by Dr. Rice's medical negligence. The case was submitted to the jury on the following allegations of fault against Dr. Rice: 1) failure to ascertain whether pregnancy was the cause of Shultz' menstrual irregularity before injecting her with progesterone in oil; 2) failure to administer to Shultz the ordinary dose of progesterone in oil for treatment of amenorrhea; and 3) failure to inform Shultz of the risks progesterone in oil treatments pose for pregnant women.
Shultz made no claim for personal injury, nor did she claim the progesterone in oil injection caused any harm to her fetus. She claimed only Dr. Rice's actions caused her mental anguish during the two-week period from the confirmation to the termination of her pregnancy.
The jury returned a verdict for Dr. Rice. This appeal is taken from the jury verdict and the district court's denial of Shultz' motion for a new trial.
On appeal, Shultz claims the district court erred by: 1) admitting evidence that Shultz was unmarried at the time of her pregnancy; 2) admitting evidence Shultz' expert witness, Dr. Bernard Nathanson, was director of the largest abortion clinic in the world; 3) permitting Dr. Rice's counsel to remark during closing argument that Shultz had offered no exhibits of medical literature regarding the controversial effects; 4) permitting Dr. Rice's counsel, during closing argument, to ask the jury to place themselves in the position of Dr. Rice on August 8, 1980; 5) permitting Dr. Rice's counsel to comment during closing argument on the failure of Dr. Manley to testify; 6) telling Shultz' counsel, in the presence of the jury, he was making strong accusations concerning Dr. Rice's alleged alterations of medical records; 7) failing to clarify its instructions after it received a note from the sequestered jury; 8) failing to use the verdict form for comparative negligence as recommended by the Kansas Pattern Instructions; 9) allowing Dr. Rice's counsel to cross-examine Dr. Rice with leading questions; 10) submitting Instruction No. 4 concerning comparative negligence to the jury; and 11) failing to grant a new trial.
We note Shultz failed timely objection to preserve for appellate consideration her contentions 3, 5, 6, 7 and 8. Shultz' failure to raise these issues with the district court precludes their review except for the "most manifest error." Gundy v. United States, 728 F.2d 484, 488 (10th Cir.1984). 5 For reasons set out below, we find no manifest error in the district court's actions related to the issues first raised on appeal.
Shultz asserts the district court erred by allowing Frank Saunders, Jr., counsel for Dr. Rice, to make the following portion of his closing argument:
Now, on the same day, August 11, she contacted Mr. Pickett, and since that date, August 11, 1980, it is obvious this case has been orchestrated to the particular point today. She went to the medical library and by her testimony, she even showed emotion when she was telling it, she looked at all these pictures of deformed fetuses. On August 11 after Mr. Pickett suggested she go to a medical library and look up what she wanted to find out about progesterone in oil, but where are any of those articles? Where is any evidence in this case that any person other than maybe Planned Parenthood, maybe the Hotline from Florida, maybe Mr. Pickett, ever told her that Dr. Rice did anything wrong?
R. X, 84. Shultz argues the medical literature was inadmissible under Fed.R.Evid. 803(18), and Saunders' mention of its absence misled the jury by creating the impression the articles were being kept from them for improper reasons.
Dr. Rice responds the literature was crucial to the causation element in Shultz' claim for emotional distress. Therefore, her failure to produce it was relevant to the credibility of her testimony, on direct and cross-examination, that every article and medical text she read stated progesterone in oil is dangerous to a fetus.
We note Rule 803(18), an exception to the hearsay rule, allows admission of statements from learned treatises relied upon by an expert witness with the proviso that "[i]f admitted, the statements may be read into evidence but may not be received as evidence." Here, Dr. Rice's expert witness offered the only medical literature read into the record. Clearly, Shultz had the opportunity to read into the record the literature that allegedly caused her emotional distress, and the court's allowance of Saunders' comment on her failure to do so...
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